O.C.G.A. § 53-7-62 (2019)

Annotations

COMMENT This section carries forward the provisions of former OCGA Sec. 53-7-163 and the last sentence of former OCGA Sec. 53-7-164. JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION NONRESIDENT EXECUTOR STATUTE OF LIMITATIONS GENERALLY JURISDICTION General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 2599, former Civil Code 1910, § 4073, and former Code 1933, §§ 113-2201 and 113-2202, are included in the annotations for this Code section. Purpose. - Statute does not restrict and confine the remedy of an accounting merely as against the administrator individually or as administrator; the statute’s purpose is to require an accounting of the property of the estate that went into the administrator’s hands, and could be maintained whether brought against one as administrator, or jointly as administrator and as an individual. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2201). Statute gives the right to a legatee to cite the administrator to appear before the ordinary (now probate judge) for a settlement of accounts. Cubine v. Cubine, 69 Ga. App. 656, 26 S.E.2d 462 (1943) (decided under former Code 1933, § 113-2201). If the statute should be construed as not embracing an assignee, this

would merely constitute an additional ground for proceeding in equity, and would not defeat such assignee altogether. Sanders v. Hepp, 190 Ga. 18, 8 S.E.2d 87 (1940) (decided under former Code 1933, § 113-2201). Sounder and better construction of this statute, touching the enforcement of judgments rendered by the ordinary (now probate judge) against executors and administrators on citations to account, is that mere money liabilities, when no specific fund is involved, are enforceable only by execution against the property, and not by attachment against the person. Paschal v. Melton, 174 Ga. 910, 164 S.E. 757 (1932) (decided under former Code 1933, § 113-2202). Proceeding brought for accounting with an administrator is not predicated upon any debt or claim against the administrator or the estate; the heirs at law are not creditors of either, but the owners of the property of the deceased, subject to the rules of administration of estates. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2201). Mere qualification and the filing of

annual returns by an executor in the court of ordinary (now probate court) do not constitute a proceeding for a ‘‘settlement of his accounts,’’ with judgment enforcing the settlement, as provided by former Code 1933, §§ 2201 and 2202, and would not preclude the superior court from taking jurisdiction of a subsequent petition by a residuary legatee for an accounting and settlement against the executor. Robinson v. Georgia Sav. Bank & Trust Co., 185 Ga. 688, 196 S.E. 395 (1938) (decided under former Code 1933, § 113-2201). Heirs at law may bring their suit for their distributive shares against an administrator and the sureties on the administrator’s bond, and pray for an accounting and settlement, at any time after the expiration of one year from the time of the qualification of such administrator. No prior judgment establishing the liability of the administrator or a devastavit by the administrator shall be necessary before suit against the sureties on the bond. Langford v. Johnson, 46 Ga. App. 444, 167 S.E. 779 (1933) (decided under former Civil Code 1910, § 4073). One distributee or legatee may proceed for an accounting and settlement without joining other distributees or legatees as parties, and the representative of the estate is not required, unless one so desires for one’s own protection, to make other distributees or legatees parties to the proceeding. Robinson v. Georgia Sav. Bank & Trust Co., 185 Ga. 688, 196 S.E. 395 (1938) (decided under former Code 1933, § 113-2201); Bracewell v. Bracewell, 117 Ga. App. 553, 161 S.E.2d 390 (1968) (decided under former Code 1933, § 113-2201). Proceeding by the heirs at law for an accounting may be maintained jointly against the administrator in the administrator’s official capacity and as an individual. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2201). Administrator’s decision as res judicata. - When an administrator is cited for settlement before the court of ordinary (now probate court), and one issue involved is whether certain certificates of deposit in a bank are the property

of the estate and should be administered, the ordinary (now probate judge), in making settlement of the account between the administrator and the distributees, has jurisdiction to pass upon such issue, and the administrator’s decision therein becomes res judicata as to all distributees who are present at the hearing. Brooks v. Brooks, 184 Ga. 872, 193 S.E. 893 (1937) (decided under former Code 1933, § 113-2201). Agreement between administrators and heirs touching sale of lands and conveyance thereof to certain of the heirs did not constitute a final settlement of the estate. Musselwhite v. Ricks, 55 Ga. App. 58, 189 S.E. 597 (1936) (decided under former Code 1933, § 113-2201). Claim of deceased heir asserted by personal representative. - In action against an administrator for an accounting, the heirs at law of a deceased heir at law cannot maintain a suit as such for the portion due the deceased heir at law, as any interest of the deceased heir at law must be asserted by a personal representative; but the failure to join, as a party plaintiff, the personal representative of a deceased heir at law would not authorize the dismissal of the suit. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2201). Accountability as executor and holder of life estate. - When an executor also held a life estate in property, the executor’s broad power as life tenant was not determinative of the executor’s liability for an accounting of the estate in her capacity as executor, in the face of the remainderman’s claims of fraud and mismanagement. Cannon v. Bangs, 269 Ga. 671, 502 S.E.2d 224 (1998). Suits by minors. - When the minor is a ‘‘person interested as distributee or legatee’’ who might, under the terms of this statute, cite the executor ‘‘to appear before the ordinary (now probate judge) for settlement of his accounts,’’ which, when had, would be conclusive upon the executor, ordinarily, this right in the minor, where the minor has a legal guardian, should be maintained by the minor’s guardian, or by next friend or other competent representative; and such a citation would be bind-

General Consideration (Cont’d) ing on the minor. Perdue v. McKenzie, 194 Ga. 356, 21 S.E.2d 705 (1942) (decided under former Code 1933, § 113-2201). When the guardian, acting on behalf of the minor by reason of the disqualification of the trustee who might otherwise have acted as testamentary guardian, seeks a settlement of the accounts with the executor, such proceeding is properly maintained. Perdue v. McKenzie, 194 Ga. 356, 21 S.E.2d 705 (1942) (decided under former Code 1933, § 113-2201). Probate court’s authority to order executor to turn over funds. - In circumstances in which an estate executor used a power of attorney before the executor’s mother’s death to add the executor’s name to bank accounts and a certificate of deposit, eventually taking all of the money from those accounts for the executor’s own without reporting that money as part of the estate, a probate court was authorized to order the executor to turn over that money to the estate; after the executor was appointed to handle the estate, the executor knew that the executor possessed money that should have been in the estate, knowledge the executor gained by being the person who removed the money from the estate, and the executor’s retention of those funds promoted the executor’s own interest to injury of beneficiaries of the estate, and thus was a breach of the executor’s fiduciary duty. Greenway v. Hamilton, 280 Ga. 652, 631 S.E.2d 689 (2006). Appeal not authorized. - When issues remained pending in the probate court, no final accounting or settlement of accounts was possible; thus, O.C.G.A. § 53-7-62 did not authorize an appeal. Geeslin v. Sheftall, 263 Ga. App. 827, 589 S.E.2d 601 (2003). Removal of administrator. - Because an administrator was personally served with a copy of the removal petition and the ‘‘citation and rule nisi,’’ and never raised any objection to the alleged procedural defect in the answer or during the hearing, the administrator’s claim that the probate court erred in ordering an accounting during the removal proceeding because the administrator was not served

with a citation to appear before the court for a settlement of accounts, as required by O.C.G.A. § 53-7-63, was meritless; hence, the probate court’s order was not void. Ray v. Nat’l Health Investors, Inc., 280 Ga. App. 44, 633 S.E.2d 388 (2006). Attorney fees assessed against executor, not estate. - Since the probate court found that an executor kept an estate open without legitimate reason, disregarded court orders, breached the executor’s fiduciary duty to the estate, and unnecessarily expanded the proceedings once a petition for accounting had been filed, such that an award of attorney fees to the petitioner was warranted under O.C.G.A. § 9-15-14(b), those fees had to be assessed against the executor, not the estate. In re Estate of Holtzclaw, 293 Ga. App. 577, 667 S.E.2d 432 (2008). Cited in Davis v. Harper, 54 Ga. 180 (1875); Coleman v. Hodges, 166 Ga. 288, 142 S.E. 875 (1928); White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935); Porter v. Watson, 51 Ga. App. 848, 181 S.E. 680 (1935); Chapalas v. Papachristos, 185 Ga. 544, 195 S.E. 737 (1937); Robinson v. Georgia Sav. Bank & Trust Co., 185 Ga. 688, 196 S.E. 395 (1938); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); McCord v. Walton, 192 Ga. 279, 14 S.E.2d 723 (1941); Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943); Ware v. Martin, 207 Ga. 512, 63 S.E.2d 335 (1951); Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953); Hartsfield v. Hartsfield, 87 Ga. App. 707, 75 S.E.2d 276 (1953); Toombs v. Hilliard, 209 Ga. 755, 75 S.E.2d 801 (1953); Turner v. Turner, 210 Ga. 586, 82 S.E.2d 137 (1954); Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957); Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975); DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980); Simon v. Bunch, 260 Ga. 201, 391 S.E.2d 648 (1990); In re Estate of Sims, 246 Ga. App. 451, 540 S.E.2d 650 (2000); In re Estate of Long, 307 Ga. App. 896, 706 S.E.2d 704 (2011). Nonresident Executor Nonresident executor. - If a nonresident of a county accepts appointment as an executor of an estate, subject to the

jurisdiction of the ordinary (now probate judge) of that county, such executor is subject to a citation for settlement before the ordinary (now probate judge) or court of ordinary (now probate court) of such county. Trust Co. v. Smith, 54 Ga. App. 518, 188 S.E. 469 (1936) (decided under former Code 1933, § 113-2201). Statute of Limitations Generally Timing based on qualification of administrator. - Statute of limitations applicable to a proceeding for an accounting against an administrator was former Code 1933, § 3-709 (see O.C.G.A. § 9-3-27), and under former Code 1933, § 113-1526 the statute did not commence to run until one year (now six months) after the qualification of the administrator. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2201). Limitation period does not run during heir’s minority. - Statute of limitations applicable to a proceeding for an accounting against an administrator would not run during the heir’s minority. Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343 (1948) (decided under former Code 1933, § 113-2201). Summary judgment improperly granted to siblings on statute of limitations bar issue. - Trial court erred in granting summary judgment to the siblings on the basis that the challenging sister’s claim against the estate seeking an accounting was time-barred because a question of fact remained as to whether the sister was on notice that they had claimed any estate property adversely to the sister, thus, a jury had to decide whether the 10-year bar of O.C.G.A. § 9-3-27(2) began to run before that time. In re Estate of Wade, 331 Ga. App. 535, 771 S.E.2d 214 (2015). Jurisdiction Jurisdiction of probate court. - Court of ordinary (now probate court) has jurisdiction of matters pertaining to the estates of deceased persons, jurisdiction over administrators, jurisdiction to compel administrators to account for the assets of an estate in their possession or

custody, and jurisdiction in such cases to attach and punish for contempt. Melton v. Jenkins, 50 Ga. App. 615, 178 S.E. 754 (1935) (decided under former Code 1933, § 113-2201). Jurisdiction of the court of ordinary (now probate court) to revoke the letters of executorship, and to require the executor to make an accounting and settlement to the heirs is limited to the case as one at law. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957) (decided under former Code 1933, § 113-2201). Statute provides only for a proceeding in a court of ordinary (now probate court). Sanders v. Hepp, 190 Ga. 18, 8 S.E.2d 87 (1940) (decided under former Code 1933, § 113-2201). Citation is all that is necessary. - Petition brought by certain heirs and distributees in the ‘‘Court of Ordinary (now probate court) of Colquitt County,’’ against the executor of such estate, who has qualified in Colquitt County, asking a citation for settlement and accounting is properly brought although such petition is not addressed to the ordinary (now probate judge). In such a case, there is no distinction between the ordinary (now probate judge) and the court of ordinary (now probate court). Trust Co. v. Smith, 54 Ga. App. 518, 188 S.E. 469 (1936) (decided under former Code 1933, § 113-2201). When the administrator contended that it was not the administrator’s duty to administer certain certificates of deposit for the reason that the decedent had given the certificates away during life, and therefore that the certificates were no part of the estate, whereas certain of the distributees contended to the contrary, it would be the duty of the court of ordinary (now probate court) to decide the question thus submitted, under authority of former Code 1933, § 113-2201 or former Code 1933, § 113-2202. Brooks v. Brooks, 184 Ga. 872, 193 S.E. 893 (1937) (decided under former Code 1933, § 113-2201). In a proceeding by a legatee against an executor, before the ordinary (now probate court) under this statute, for an accounting, the ordinary (or the superior court on appeal) is authorized to remove such executor when it appears that the executor has without authority used property in

Jurisdiction (Cont’d) the executor’s hands, in a joint venture or partnership in which the executor in one’s individual right is interested, and where, without authority, the executor is shown to have held as a speculation property or crops which it was the executor’s duty under the law to sell. This is true even though such venture or speculation does not result in loss to the beneficiary, the law being that as to such a trust this relationship must not be assumed and no such risk be taken, unless authorized by the will. Perdue v. McKenzie, 194 Ga. 356, 21 S.E.2d 705 (1942) (decided under former Code 1933, § 113-2201). In a proceeding in the court of ordinary (now probate court) to call executors and administrators to account, a citation is all the pleading that is necessary. Cubine v. Cubine, 69 Ga. App. 656, 26 S.E.2d 462 (1943) (decided under former Code 1933, § 113-2201). It is not essential to the sufficiency of a petition in the court of ordinary (now probate court) to call the administrator to an accounting, or to a citation, that it be alleged that there are assets of the estate, or any specific property in the hands of the administrator to be administered. Cubine v. Cubine, 69 Ga. App. 656, 26 S.E.2d 462 (1943) (decided under former Code 1933, § 113-2201). When it appears in the petition and citation for a settlement that the petitioners are legatees under a will, and as such are entitled to an accounting, and there are no allegations as to the interpretation or construction of the will, the petition is not subject to dismissal on the ground that there is presented a case for the construction of a will and that the ordinary (now probate judge) has no jurisdiction. Cubine v. Cubine, 69 Ga. App. 656, 26 S.E.2d 462 (1943) (decided under former Code 1933, § 113-2201). Determining title to property. - Court of ordinary (now probate court) does not have jurisdiction to try and determine title to property, either real or personal, and, upon appeal to the superior court of a caveat to a year’s support for a widow, the jurisdiction of that court was no broader or greater than that of the court appealed

from. Hartsfield v. Hartsfield, 87 Ga. App. 707, 75 S.E.2d 276 (1953) (decided under former Code 1933, § 113-2201). Equitable jurisdiction. - While a court of equity has concurrent jurisdiction with the ordinary (now probate judge) in settlement of accounts of guardians (or administrators), the jurisdiction of the ordinary (now probate judge) is original and the court of equity concurrent. In settling accounts of the representative of an estate, the representative’s returns which have been allowed by the ordinary (now probate judge) are considered as stated accounts, and the rule that any one who objects to a stated account must surcharge and falsify applies. The object of settling the accounts of the representative of an estate is to determine whether or not the representative has properly administered the trust. Trust Co. v. Smith, 54 Ga. App. 518, 188 S.E. 469 (1936) (decided under former Code 1933, § 113-2201). When devisee brings equitable petition against coexecutors of an estate, seeking a partition of the property of the estate through a sale by the receiver, and alleging that more than 20 years had elapsed since the executors had qualified, that all the debts of the estate had been paid, and that executors were in possession of all real and personal property belonging to the estate, the allegations are insufficient to authorize the grant of the prayers for equitable partition between the devisees because plaintiff devisee has a full and adequate remedy under the law in the court of ordinary (now probate court) to require executors to distribute the estate by division or partition. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953) (decided under former Code 1933, § 113-2201). When the court of ordinary (now probate court) has first taken jurisdiction of proceedings against an executor or administrator for an accounting and settlement that court will retain jurisdiction, unless good reason can be given for the interference of equity. Manry v. Manry, 196 Ga. 365, 26 S.E.2d 706 (1943) (decided under former Code 1933, § 113-2201). Dispute between cotenants. - Probate court is without jurisdiction to resolve a dispute which involves equitable claims asserted by cotenants. Evans v.

Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-2201). Statute does not provide for a settlement of accounts between cotenants. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-2201). Judge may decide any presented question necessary. - Provision that the ordinary (now probate judge) may ‘‘hear evidence upon any contested question, and settle finally between the distributee and administrator’’ means that in the hearing of such citation it is within the power of the court of ordinary (now probate court) to decide any presented question which it is necessary for the court to decide in order to determine whether the administrator has discharged all the administrator’s duties with respect to the assets of the estate, and consequently how the administrator’s account should be settled with the distributees. Brooks v. Brooks, 184 Ga. 872, 193 S.E. 893 (1937) (decided under former Code 1933, § 113-2202).

Court of ordinary (now probate court) has jurisdiction of matters pertaining to the estates of deceased persons, jurisdiction over administrators, jurisdiction to compel administrators to account for the assets of an estate in their possession or custody, and jurisdiction in such cases to attach and punish for contempt. Melton v. Jenkins, 50 Ga. App. 615, 178 S.E. 754 (1935) (decided under former Code 1933, § 113-2202). When an administrator is cited for settlement before the court of ordinary (now probate court), under former Code 1933, § 113-2201, and one issue involved is whether certain certificates of deposit in a bank are the property of the estate and should be administered, the ordinary (now probate judge) in making settlement of the account between the administrator and the distributees, has jurisdiction to pass upon such issue, and the ordinary’s decision therein becomes res judicata as to all distributees who are present at the hearing. Brooks v. Brooks, 184 Ga. 872, 193 S.E. 893 (1937) (decided under former Code 1933, § 113-2202).

RESEARCH REFERENCES Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, §§ 867, 872 et seq., 900, 903. C.J.S. - 34 C.J.S., Executors and Administrators, §§ 979, 1011. ALR. - Right of surety on bond of executor, administrator, or testamentary trustee, as regards notice of proceedings to settle principal’s account or reopen settlement, 93 A.L.R. 1366. Decree settling account of executor who is also trustee as res judicata in respect of this liability in capacity of trustee, 116 A.L.R. 1290. Right of executor or administrator to contest, or appeal from, court’s rejection of claim against decedent’s estate, 129 A.L.R. 922. Failure of executor, administrator, trustee, or guardian to disclose self-dealing, as ground for vacating order

or decree settling account, 132 A.L.R. 1522. Refusal or failure of executor, administrator, guardian, conservator, trustee, receiver, or other fiduciary to pay over, or account for, funds, as contempt, 134 A.L.R. 927. Conclusiveness of allowance of account of trustee or personal representative as respects self-dealing in assets of estate, 1 A.L.R.2d 1060. Right of debtor of or person claimed to be liable to estate to contest will or challenge its admission to probate, 15 A.L.R.2d 864. Beneficiary’s consent to, acquiescence in, or ratification of, trustee’s improper allocation or distribution of assets, 29 A.L.R.2d 1034. Accountability of personal representative for his use of decedent’s real estate, 31 A.L.R.2d 243.